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August 14, 2010

SCOTUSblog predicting that Acting SG Neal Katyal will get to officially become the next Tenth Justice

Tom Goldstein has this interesting new post titled "Anticipating the next Solicitor General: The likely selection of Neal Katyal." Here is how it starts and ends:

The interim appointment of an Acting Principal Deputy Solicitor General this week got me thinking about the choice of a successor to Elena Kagan as Solicitor General. I don’t know precisely where the process stands (and in fact, I don’t know who will make the decision), but as with the choice of a nominee to the Supreme Court, the potential candidates and relevant considerations are well known. In the end, I think that Neal Katyal will be named as the next Solicitor General.

For months, chatter from the Department of Justice has identified the same two candidates for the position: Don Verrilli and Neal Katyal. Full disclosure, I know both personally and I think both would do a terrific job. My own personal views don’t much matter, but I expect that all the repeat players in the Supreme Court bar would agree....

Ultimately, I agree with the consensus that either Don Verrilli or Neal Katyal would make a great Solicitor General. For a few reasons, I think it’s simply more likely that Katyal will be selected.

I know Neal well because he clerked for Judge Guido Calabresi the year after I did, and also because we have subsequently worked together in other settings. For this reason (and also because Neal has a long history of working on a variety of criminal justice issues), I am hoping Tom's prediction as to the next "Tenth Justice" proves accurate. I am not sure that having Neal go from Acting SG to official SG will tangibly change the office's basic approach and direction in criminal justice matters, but it is fun at this stage to speculate how a new SG with a criminal law background might approach some of the future Second Amendment and federal sentencing issues now lurking in lower courts.

"Is Life Sentence Too Harsh For Man Convicted of Ninth DWI?"

The question in the title of this post is the headline of this new ABC News report on a noteworthy state sentence handed down in Texas this past week. Regular readers will not be surprised to here that my personal answer to this question is a resounding NO, especially given that this is a life WITH parole eligibility in as little as five years. Here are the details:

The ninth conviction was the breaking point for one Texas judge who earlier this week sentenced a habitual drunken driver to life in prison.

Bobby Stovall, 54, was driving his truck in Round Rock, Texas, in early July when he weaved through several lanes of traffic and hit another vehicle, injuring the driver. It was later determined that Stovall had a blood alcohol concentration of .32, four times the legal limit in Texas.

And while that DWI was certainly enough to get Stovall in trouble with the law, when the judge found out the defendant had eight prior DWI convictions across several different counties in Texas, he ordered up a life sentence for Stovall.

"This is someone who very deliberately has refused to make changes and continued to get drunk and get in a car and before he kills someone we decided to put him away," said Williamson County District Attorney John Bradley.

Bradley said that in addition to the multiple DWI convictions , Stovall also had a extensive rap sheet for other crimes, including burglary, credit card abuse and supplying alcohol to a minor. "He basically walked through the penal code for the past twenty years without any regard for safety or society," said Bradley. "In every single one of his cases he had an opportunity to change."

But some argue that Stovall's sentence was too harsh and that the court should have considered his struggle with alcoholism. "This guy has a disease, he is an alcoholic and this isn't the kind of situation where he's acting with malice to hurt people," said Lawrence Taylor, a DUI lawyer and author of "Drunk Driving Defense."

"He has a serious problem and I hope the days are past where we think alcoholism is something you choose," said Taylor. Taylor said that he does not agree with the judge's sentencing of Stovall and would have preferred more "rehabilitation" than "ending his life." "You're essentially doing just that, ending this man's life, at the expense of taxpayers," he said.

But Bradley says that it's better to lock up a man like Stovall -- and prevent him from hurting someone in the future -- than give him yet another chance. "I think that the ninth time you get caught and punished for [drunken driving] you would have found some way of not getting in that car," said Bradley....

"If this guy was using a shotgun to shoot lights randomly around his neighborhood I doubt we'd be [getting criticized] for the sentencing," he said. "In this case he's simply using his truck as his weapon."

Stovall would be eligible for parole in five years, but depending on his conduct in prison and other factors, that could be as long as 10 to 15 years.

Even though I am prepared to accept the notion that alcoholism is a disease, I do not think this fact make this long sentencing misguided. Those who suffer from alcoholism may not have a choice as to drinking, but they surely have a choice concerning whether to get behind the wheel while drunk. And Bobby Stovall obviously has continued to choose to put himself in a situation in which he makes choices about driving that put many of his fellow citizens at great risk.

The fact that Stovall will be eligible for parole in five years makes the "life sentence" in this case seem especially reasonable. I assume he will get out early if and when he makes progess battling alcoholism, and it seems that he has had no luck wage this battle on his own outside of the prison setting.

August 13, 2010

"Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias"

It seems like I have decided to make this summer Friday a good day for reading about plea bargaining. In addition to this recently noted piece, the title of this post references another great-looking plea bargaining read available here via SSRN. Authored by Michael Cassidy, here is the abstract:

In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices employed by prosecutors in the plea bargaining context that in his view violate a prosecutor’s duty to “do justice,” but yet presently are entirely unregulated. He then demonstrates how a focus on efficiency, equality, autonomy and transparency might help prosecutors avoid these ethical minefields.

The question in the title of his post is prompted by this interesting local press report on a federal sentencing here. The piece is headlined "Defense cites Tourette syndrome in case of New Castle man," and here are some of the details:

A Lawrence County man became attracted to underage girls and collected child pornography because Tourette syndrome and an isolated upbringing limited his ability to interact with women his age, a forensic psychologist said Thursday during a sentencing hearing in Pittsburgh federal court.

Kelly Hardy, 40, of New Castle grew up in a "petri dish of dysfunction" and his parents ignored doctor's recommendations for counseling and treatment because "they don't talk to psychiatrists," said Jolie Brams, a Columbus, Ohio, psychologist. His parents discouraged Hardy and his two brothers from making friends, so Hardy grew up with a desire for relationships he couldn't form, she said. "He just had no idea how to have one," Brams said.

Hardy pleaded guilty Oct. 22 to possession, receipt and transportation of child pornography. Federal guidelines recommend that he receive a prison sentence of 30 years to life. Public defender Penn Hackney asked U.S. District Judge Nora Barry Fischer to ignore the guidelines.

Assistant U.S. Attorney Craig Haller argued that Hardy's mental problems should not entitle him to leniency. Both of Hardy's brothers exhibit symptoms similar to Hardy's but haven't become pedophiles, he said.

University of Pittsburgh law professor David Harris said that he never heard of using Tourette syndrome as a defense in a child pornography case but said mental issues frequently are raised when judges consider sentences....

Hardy amassed thousands of images and videos of child pornography, videotaped neighborhood children playing and stole girls' panties from homes he visited, according to court documents. In online chats with other child pornography collectors, Hardy said "he would most like to rape 8-year-old girls but would rape any girls from 2 to 15 years of age," court records show.

Brams said Tourette syndrome causes people to obsessively collect or "hoard" things. That helps explains the 60 hard drives and other digital media police found when they searched Hardy's home, she said. "He collected more pornography than anyone could ever look at," she said.

Haller said even if Hardy didn't watch the pornography, he traded it for other images and videos. Although Tourette might cause someone to collect compulsively, "it does not decide what you are interested in collecting," he said. If anything, the combination of Tourette syndrome and pedophilia makes Hardy more of a risk to society because it means he has less control over his impulses, Haller argued.

"The Role of Evidence in the Value of Plea Bargains"

The title of this post is the title of this notable article on plea bargaining available via SSRN. Here is the abstract:

It has been well established that a “plea discount” or “trial penalty” exists, such that defendants who plead guilty receive significant sentencing discounts relative to what they would receive if convicted at trial. Theorists argue that the exact value of this plea discount is determined by bargaining “in the shadow of a trial,” meaning that plea decision-making is premised on the perceived probable outcome of a trial. In trials, the strength of the evidence against defendants greatly impacts the probability of conviction. In the present study, we estimate the probability of conviction at the individual level for those who pleaded guilty. We find that, contrary to the rational choice model, evidentiary factors either do not impact or negatively impact the probability of conviction, which stands in stark contrast to the impact evidence has at trials. These preliminary findings suggest that plea bargain decision-making does not occur in the shadow of the trial.

August 12, 2010

A helpful reader altered me to this notable local sentencing story from Philadelphia, which is headlined "Philadelphia-area thief gets 21 years house arrest." Here are the fascinating details:

An office manager who admitted stealing $475,000 from her employer has been sentenced to 21 years of house arrest so she can work to repay it. Lanette Sansoni's unusual sentence came after her ex-boss said he was more interested in restitution than jail time, her lawyer said.

"This was just a creative compromise," defense attorney A. Charles Peruto Jr. said Thursday. "I think it will encourage her to pay it off, so the judge was pretty smart about it."

Peruto, a veteran defense lawyer in the region, guessed the two-decade term may be a record for house arrest in Pennsylvania. State officials could not immediately confirm that.

Sansoni, 40, has repaid about $275,000 after selling her home in Warminster, just north of Philadelphia, and moving in with her mother. She will remain on house arrest until the remaining $200,000 is repaid to Kenneth Slomine, who owned JRS Settlement Services, a title company in Lower Moreland Township.

Montgomery County Judge Joseph A. Smyth on Wednesday set a payment schedule of $750 a month, which works out to about 21 years. Sansoni can leave home to work but could go to jail if the payments stop. She has a job paying $700 a week, Peruto said, but he wouldn't disclose what it is.

Prosecutors had argued for incarceration for Sansoni, who also served as a title clerk at JRS before it went bust because of her theft. "This is a case that just cried out for jail time," said Assistant District Attorney Steven Bunn, who called Sansoni's crimes "egregious."

"She's not stealing to make ends meet," Bunn said. "She was buying luxury vacations, designer handbags, designer jewelry, and basically living the high life while this company went under."...

Peruto said he expects Sansoni to pay off the debt early and be released from house arrest. "I wouldn't be shocked," he said, "if it was paid off in a couple of years."

"California borrows from budget to build new death row"

The title of this post is the headline of this AP article, which gets started this way:

Despite California's $19 billion budget deficit, Gov. Arnold Schwarzenegger's administration said Wednesday it will borrow nearly $65 million from the state's cash-strapped general fund to begin building a new 1,152-bed death row at San Quentin State Prison. Borrowing now will save money in the long run by reducing interest payments and taking advantage of the favorable construction climate, said Department of Finance spokesman H. D. Palmer.

Legislators and social services organizations have stalled the bonds that would usually pay for construction by suing Schwarzenegger over several of his budget vetoes last year. Palmer said the administration is confident the governor's veto authority will be upheld by the California Supreme Court, which is scheduled to hear arguments Sept. 8.

Legal debate aside, opponents of the death row expansion said it is foolish to take money from the general fund, which pays for ongoing state operations, when the state hasn't decided how to deal with its budget deficit.

Assemblyman Jared Huffman, D-San Rafael, called it "stunningly hypocritical" that the governor is borrowing from the general fund at the same time he is attempting to furlough state employees three days each month to avoid a looming cash crisis. The state could soon again begin issuing IOUs because it is out of money, Huffman said in a statement.

He and Sen. Mark Leno, D-San Francisco, also criticized the projected cost overruns for a project that originally was expected to cost $220 million.

The administration put the total price tag at $356 million for 768 new cells, a 24-bed medical treatment center and other support buildings. The new cells will contain 1,152 beds, because many of the inmates will be housed two to a cell.

Making the conservative case for ending pot prohibition in California

A helpful reader forwarded to me this recent local commentary from California, which is headlined "Right should back pot measure." Here are parts of the arguments made by the authors:

California conservatives in November should support Proposition 19, a ballot initiative that would remove criminal penalties for the possession, cultivation, and private use of marijuana by adults. And this support should be based on core conservative principles such as free markets, limited government and the rule of law.

The economic argument for legalization ought to be persuasive for most clear-thinking conservatives. Simply put, the current prohibition of cannabis has produced few if any social benefits while the costs of prohibition have been outrageously expensive....

[T]he proposed "Regulate, Control and Tax Cannabis Act" seeks to bring a long-overdue rationality to the marijuana market by allowing local governments to impose sensible regulations. It would, for example, establish age restrictions on consumption (21 years) and also provide a general overall framework for the drug's production, quality control, and distribution. The proposal would also impose restrictions on where and when cannabis could be legally consumed. This framework for an orderly and safe cannabis marketplace could actually be expected to mitigate much of the social cost associated with the ineffectual prohibition regime.

Finally, conservatives should not accept the argument that a product must remain illegal simply because it might possibly be abused. This argument is specious at best (it would prohibit swimming pools and skiing) and leads directly to the all-intrusive Nanny State, where federal bureaucrats ultimately decide which products (or medications) are good for the individual, even when their behavior is absent harms to others. Instead, conservatives should always support individual and family responsibility in product (and health care) choice and demand full accountability for those choices.

Milton Friedman and William F. Buckley Jr.—staunch conservatives with impeccable credentials—both strongly supported an end to the war on marijuana. The initiative in November is a sensible, common-sense step in the right direction.

Although it has been over five years since the Supreme Court’s thoroughgoing reform of federal sentencing law in United States v. Booker, 543 U.S. 220 (2005), a number of open questions remain regarding that decision’s ramifications. In particular, this case requires us to decide Booker’s impact—if any—on our jurisdiction to hear the appeal from a district court’s decision to reduce (or decline to reduce) a final sentence under 18 U.S.C. § 3582(c)(2) (“§ 3582(c)(2)”) and/or Federal Rule of Criminal Procedure 35(b) (“Rule 35(b)”). Because the Supreme Court has recently clarified that Booker does not apply to such sentence-reduction proceedings, seeDillon v. United States, 130 S. Ct. 2683 (2010), we conclude that we lack jurisdiction to hear a defendant’s appeal of the grant or denial of a sentence reduction pursuant to those sections on Booker “reasonableness” grounds. Accordingly, we dismiss this appeal for want of jurisdiction.

The Second Circuit has a long and split sentencing opinion today in US v. Kumar, No. 06-5482 (2d Cir. Aug. 12, 2010) (available here), which gets started this way:

Appeal by Defendants from separate judgments entered in the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge), following guilty pleas by Defendants to several counts of conspiracy, securities and wire fraud, obstruction of justice, and perjury. We hold that Richards’s guilty plea was not constitutionally infirm and that he was properly charged with, and convicted on his guilty plea to, obstruction of justice. We therefore AFFIRM Richards’s judgment of conviction in all respects. We further conclude that the use of the Sentencing Guidelines in effect at the time of sentencing to calculate Defendants’ Guidelines ranges for their fraud offenses, rather than the Guidelines in effect at the time of the commission of those offenses, did not violate the Ex Post Facto clause. We further conclude that the district court properly calculated the loss amount underlying Defendants’ monetary fines and that the district court did not abuse its discretion by denying Kumar an acceptance of responsibility credit in determining his Guidelines range. We further conclude that the district court erroneously failed to award Richards a two-point reduction for acceptance of responsibility. Thus, we AFFIRM Kumar’s sentence in all respects and VACATE Richards’s sentence and REMAND for resentencing.

I disagree, however, with the majority's conclusion that the defendants' sentencing on securities and wire fraud charges on the basis of the "one book" of the Sentencing Guidelines in effect in 2005, long after those violations had been completed, does not violate the constitutional prohibition against ex post facto laws. The defendants' commission of subsequent obstruction of justice offenses, though related to the underlying securities and wire fraud charges and committed at a time when the 2005 Guidelines would apply, does not, in my view, render those Guidelines applicable to the securities and wire fraud charges because at the time the defendants committed the securities and wire fraud offenses, they did not have "fair notice" of the severity of the penalties to which they might be subjected for them under the later, harsher Guidelines. To the extent that the majority conclude otherwise, I respectfully dissent.

August 11, 2010

Two must-reads from the latest issue of Governing

The August 2010 issue of the magazine Governing has its cover story devoted to the interesting and important (and under-appreciated) story of corrections reform in the state of Mississippi. There are so many interesting parts to the stoty, I will just plug this piece by simply noting its headline and subheading: "Mississippi's Corrections Reform: How America's reddest state -- and most notorious prison -- became a model of corrections reform."

In addition, the same issue has this astute commentary piece on one of my favorite policy topics under the headline "Marijuana: To Legalize or Not to Legalize?; Federal, state and local governments can't seem to agree whether to legalize cannabis." Here are two snippets this commentary:

Medical marijuana is in a legal and political twilight zone, caught between the ongoing policy battles on drugs and the pleas of patients suffering from painful, debilitating diseases. In fall 2009, U.S. Attorney General Eric Holder announced that in the 14 states permitting the sale of medical marijuana, the feds would focus only on big drug traffickers and money launderers. Republicans fired back that Holder was undermining federal laws and fueling the drug wars on the Mexican border. The House Judiciary Committee's ranking Republican, Rep. Lamar Smith, countered: "We cannot hope to eradicate the drug trade if we do not first address the cash cow for most drug-trafficking organizations -- marijuana." The Cato Institute's Tim Lynch countered yet again, saying the drug war had proven a "grand failure," while advocates of legalizing marijuana quietly applauded....

It's hard to think of a policy battle full of so much heat but backed by so little research. The drive for medical marijuana comes from two sources: the underground campaign to make marijuana legal, where advocates have long argued that the drug is a harmless recreation, and the desperate plight of patients suffering from chronic diseases, where traditional medicine has provided little relief....

Amid the ongoing federal war on drugs, the states are leading a noisy revolution to legalize marijuana, at least for medical use. The Obama administration said it will back off prosecuting drug laws in the states permitting medical marijuana, but in some local governments, opponents are fighting back to restrict where state-sanctioned marijuana can be sold. The state laws themselves are all over the map, from California's permissive statute to New Jersey's tough government regulation of the chain from plant to user. [Along the way], we're clumsily drawing new lines on drug use as only American federalism can.

"Pluralistic Ignorance and Punitiveness Towards Illicit Drug Users: Reactions to the Drug Fiends of Yesteryear and the Politicians of Today"

The title of this post is the title of this interesting piece I just noticed on SSRN by Matthew Kugler and John Darley. Here is the abstract:

Three studies found that Americans have less punitive attitudes towards drug users than expected. In Study 1, participants (N = 204) assign trivial punishments to cocaine users who have no prior criminal record and aggravate sentences only slightly when faced with users who have histories of moderate to severe crimes, in contrast to current legal guidelines. In Study 2, participants (N = 166) assign the same penalties to a violent offender regardless of whether that offender is described as being a drug addict, only aggravating the sentence of the drug user if that scenario was presented after one describing a non-user. Participants in Study 2 also report believing that the average American is much more supportive of harsh drug laws than they are themselves, and this difference did not vary with political orientation. This suggests that pluralistic ignorance may play a substantial role in the drug policy attitudes of the American public. We directly tested this hypothesis in Study 3 (N = 201). In a survey study, liberal and moderate participants report supporting a law-and-order-focused candidate less, and a rehabilitation-focused candidate more, than they expect the average person in their state would. At all points in the political spectrum, participants estimate that the average person in their state has drug policy preferences that are actually typical only of Republicans.

Regular readers know that the issue of whether child porn downloaders should have to pay restitution to the victims portrayed in the pictures they possess has divided federal district courts. Another such decision and its import is highlighted in this new New York Law Journal piece, which is headlined "Online Viewer of Child Pornography Ordered to Pay Restitution to the Victim: Courts nationwide have split over requiring restitution for child pornography victims who did not know their pornographers or those who viewed the images." Here are excerpts:

A man caught with pornographic images of a girl being sexually abused by her uncle has been ordered to pay restitution of nearly $50,000 to the victim, even though the defendant was a viewer of illegal images collected from the Internet who has never met the uncle or the girl.

Northern District of New York Judge Gary L. Sharpe decided that a mere "consumer" of child pornography is culpable to some degree for the emotional and psychological damage suffered by sex abuse victims under 18 U.S.C. §2259(b)(1), which allows awarding compensation for the "care required to address the long term effects of their [victims'] abuse."

While federal courts, including those in the 2nd U.S. Circuit Court of Appeals, have upheld restitution in instances where contact between children and their abusers provided the requisite causation under U.S.C. §2259, a "more difficult question" for federal courts has been in cases involving the absence of direct causation between a victim's injuries and a pornographer's actions, Sharpe ruled in United States v. Aumais, 08-cr-711.

His Aug. 3 decision affirmed in full a report, recommendation and order from U.S. Magistrate Judge David R. Homer that directed payment of $48,483 for future psychological counseling to the victim identified as "Amy," who was abused between the ages of 4 and 8. The magistrate judge said the matter was a case of first impression in the 2nd Circuit....

Gene V. Primomo, an assistant federal public defender, said Tuesday he has filed notice that he will appeal Sharpe's determination to the 2nd Circuit. He said the ruling is potentially a "huge" one for both the defense and the prosecution in child pornography cases, given the wide electronic capability of disseminating illegal images and improving technology to trace when images are downloaded....

Before sentencing, the U.S. government sought restitution for Amy, a request that was joined by her attorney, James R. Marsh. Marsh said authorities have now interceded in more than 500 cases seeking restitution for Amy. Under the federal Crime Victims' Rights Act of 2004, government prosecutors in most cases must pursue restitution claims if children who are victims of sex crimes request they do so.

"We're very happy with this decision," Marsh said Tuesday. "The magistrate judge made a very well-reasoned analysis of the proximate cause issue. We were disappointed about his finding on the future wages issue." Told of Primomo's plan to appeal, Marsh, who has expanded his New York firm to deal with child pornography restitution cases, said he welcomed the appeal.

The data and quantification challenges for criminal justice work and reform

I have been noting in a number of recent posts (examples here and here) the challenges of assessing through data the on-going medical marijuana and pot prohibition reform movements. This interesting new op-ed by Amy Bach, which is headlined "Justice by the Numbers," effectively spotlights that good data and ready means of quantification poses an enduring challenge for lots of criminal justice work and reform. Here are excerpts from her op-ed:

In communities across the country, people use statistics on hospitals, schools and other public services to decide where to live or how to vote. But while millions of Americans deal with their local criminal courts as defendants and victims each year, there is no comparable way to assess a judicial system and determine how well it provides basic legal services.

This lack of data has a corrosive effect: without public awareness of a court system’s strengths and weaknesses, inefficiencies and civil liberties violations are never remedied.

That’s why America needs a “justice index” to show how the essential aspects of our local courts are working. The index, compiled according to national standards, would function roughly like college rankings, evaluating county courts on factors like cost, recidivism, crime reduction and collateral consequences, including whether people lose their jobs or homes after contact with the criminal justice system.

True, hospitals and schools serve everyone, while most Americans will never directly interact with a criminal court. But many will — an estimated 47 million Americans have criminal records, and though exact statistics don’t exist, it’s a good bet that similar numbers have passed through the courts as victims.

Of course, those numbers count only direct contact. We all benefit from better courts, which deter crime and remove public threats from the streets.

A justice index would be relatively straightforward to create. It would start by amassing data from the country’s 25 biggest counties, where the courts are most likely to collect large amounts of information.

Next, a panel of lawyers, community representatives, statisticians and law professors would establish standards for the measurements — for example, the percentage of people who plead guilty without an attorney or average bail amounts, because a high bail figure often compels defendants to plead guilty.

Another critical measurement would be the percentage of certain types of cases that get thrown out after a defined period of time, a possible indicator of inefficiency as well as disregard for traditionally under-prosecuted crimes. The index would also assess whether a county court has certain legal protections in place, like requiring that interrogations and confessions be taped....

Rankings for hospitals and public schools create healthy competition. To get the justice we deserve, we would do well to bring a similar approach to bear on our criminal courts.

I love the idea of some kind of “justice index,” but I strongly disagree with Amy Bach's assertion that such an index "would be relatively straightforward to create." Indeed, I think the main reason such an index does not already exist is because there are such fundamental disagreements concerning what constitutes justice, and there are particularly strong disagreements as to what are the most problematic forms of "injustice" that a jurisdiction should be trying to remedy.
I would love to hear reader opinions on (1) what factors would be most important in some form of national “justice index” and (2) whether they would generally trust a "panel of lawyers, community representatives, statisticians and law professors" to be principally tasked with creating and applying such an index.

Notable Atkins capital habeas ruling from the Eighth Circuit

The Eighth Circuit has an interesting discussion of the legal issues surrounding the Supreme Court's ban on the execution of the mentally retarded in the course of reversing the dismissal of a capital habeas action. The opinion in Jackson v. Norris, No. 09-1229 (8th Cir. Aug. 11, 2010) (available ehre), gets started this way:

This is a petition for habeas corpus relief under 28 U.S.C. § 2254 brought by Alvin Jackson, an Arkansas prisoner facing execution. Jackson’s petition, before us for the second time, asserts, as relevant here, that he is mentally retarded and, therefore, his execution would violate the Eighth Amendment under Atkins v. Virginia, 536 U.S. 304 (2002) (the “Atkins claim”). In his first appeal, we reversed the district court’s dismissal of the Atkins claim on the basis of procedural default. See Jackson v. Norris (Jackson I), 256 F. App’x 12 (8th Cir. 2007) (unpublished per curiam), cert. denied, 128 S. Ct. 2907 (2008). On remand, the district court granted summary judgment to Norris, dismissing the Atkins claim on the merits, without an evidentiary hearing (an “Atkins hearing”). Jackson appeals. Because Jackson has made the requisite showing for an Atkins hearing, we reverse the district court’s denial of such a hearing, vacate the district court’s grant of summary judgment to Norris on the Atkins claim, and remand to the district court for an Atkins hearing.

August 10, 2010

"119 N.C. death row inmates allege racial bias"

The title of this post is the headline of this local piece from North Carolina providing the latest litigation update on the interesting death penalty story developing in the Tar Heel state. Here are the basics:

Dozens of inmates around North Carolina – both black and white – are challenging their death sentences under a new law that allows them to argue racial bias.

The office of North Carolina Attorney General Roy Cooper said some 119 inmates have filed a claim under the Racial Justice Act ahead of Tuesday’s deadline. A spokeswoman for Cooper said there were more claims expected among the 159 North Carolina convicts on death row.

Under the terms of the Racial Justice Act in 2009, convicts can use statistical evidence to argue bias in their sentencing. The law allows judges to consider evidence that one racial group is being punished more harshly than members of other racial groups.

Effective new commentary on the “categorical approach" to assessing past criminal history

Anyone involved in federal sentencing debates over any offender with any serious criminal history knows (probably too well) the ugly jurisprudence that has developed int he circuit courts over how prior crimes are to be labelled. Helpfully, Doug Keller has this new piece on SSRN to help folks sort out and assess this jurisprudence. His piece is titled "Causing Mischief for Taylor's Categorical Approach: Applying 'Legal Imagination' to Duenas-Alvarez," and here is the abstract:

This Article examines a recent trend in some circuits to hobble the “categorical approach.” That doctrine finds roots in Taylor v. United States, 495 U.S. 575 (1990), where the Supreme Court selected it to deal with the vexing question of how to determine what someone was previously “convicted of” for purposes of immigration and criminal law. For example, how do you know if someone was previously “convicted of” generic “burglary”? The categorical approach requires courts to answer that question by comparing the elements of the state statute the individual was convicted of (rather than the individual’s actual conduct) with the elements of generic burglary.

In Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007), the Supreme Court stated that courts should not use “legal imagination” when using the categorical approach. Thereafter, a circuit split developed over the meaning of the Court’s comment. Some circuits believe that the Court dramatically changed Taylor by requiring courts to determine how a state statute has been applied in practice before holding that its elements do not encompass a qualifying offense. Other circuits believe that the Court was merely warning courts against interpreting the scope of the elements of state statutes in broad, novel ways. This Article argues that these later courts have it right -- that the Court did not intend to alter the categorical approach and instead wanted to warn courts against misinterpreting state law. In the course of justifying that conclusion, this Article offers a defense of the much-beleaguered categorical approach -- and its peculiar results. The Article also endeavors to show that the doctrine is not as complicated as it might appear at first blush.

I am gearing up for teaching Criminal Law to first-year students starting next week, and a new Ninth Circuit sentencing decision handed down today is helping me get in the mood. Specifically, in US v. Pineda-Doval, No. 08-10240 (9th Cir. Aug. 10, 2010) (available here), the meaning of the old common-law classic "malice aforethought" is at issue in the sentencing part of the appeal. Here is the basic issue as explained in parts of the panel's opinion:

Adan Pineda-Doval was convicted, after a seven-day jury trial, on ten counts of transportation of illegal aliens resulting in death, 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iv). The district court sentenced him to a term of life imprisonment on each count, sentences to be served concurrently. On appeal, Pineda-Doval challenges his convictions, primarily on the basis that the jury should have been instructed that it could find the defendant guilty only if his conduct was the proximate cause of the ten charged deaths. In addition, he argues that his conviction should be vacated because of improper jury instructions regarding the lesser included offense of transportation of illegal aliens, incorrect evidentiary rulings, and prosecutorial misconduct at closing arguments. Finally, Pineda-Doval challenges his sentence; he argues that the district court did not find that he acted with malice aforethought and therefore should not have calculated his recommended Guidelines sentence using the second-degree murder guideline, and also that the district court should have applied the heightened “clear and convincing” standard of proof at sentencing. We affirm Pineda-Doval’s conviction, vacate his sentence, and remand for re-sentencing....

Because this court requires strict compliance with Rule 32, we cannot give the district court the benefit of the doubt and assume it meant “malice aforethought” when it said “recklessness.”... The court “demonstrated no recognition” that second-degree murder required a finding of extreme recklessness evincing disregard for human life, not simple recklessness. Herrera-Rojas, 243 F.3d at 1143. Perhaps the district court mistakenly believed that malice aforethought and recklessness are one and the same. We have interpreted Rule 32 strictly in order to avoid just this sort of uncertainty on appeal. The district court did not find “malice aforethought,” as required by Rule 32.

The panel in Pineda-Doval also requires that, because of the significant impact on the applicable guideline range, the finding of “malice aforethought” will have to be made by the "clear and convincing" standard of proof.

Ohio completes its seventh one-drug execution of 2010

As detailed in this local story, here in Ohio a "man who admitted that he 'flipped out' and murdered two former coworkers and tried to kill a third in 1991 was put to death this morning." Here are the details:

Roderick Davie, 38, was declared dead at 10:31 a.m. after receiving a lethal dose of thiopental sodium at the Southern Ohio Correctional Facility. There were no complications, prison officials said.

Davie had confessed to going on a murderous rampage at the Veterinary Companies of America warehouse in Warren on June 27, 1991, two months after the veterinary-supply firm fired him....

Yesterday, Gov. Ted Strickland followed the recommendation of the Ohio Parole Board in denying clemency to Davie. Davie was the seventh person put to death this year and the 40th since Ohio resumed capital punishment in 1999.

As noted in this recent post, the next person scheduled to be executed in Ohio has an innocence claim that might prevent the state from keeping up its monthly pace of executions. But the Davie case provides a reminder that innocence is not an issue in a significant number of capital cases. It also shows that Ohio continues to have no problems with the one-drug lethal injection protocol that it pioneered late last year.

Can any tangible harms be directly traced to marijuana going mainstream in California?

The Sacramento Bee on Sunday had this front-page report on marijuana's widespread use in California. The piece is headlined "Weed goes mainstream," and here are some of the highlights:

As California voters prepare to decide in November whether to become the first state to legalize marijuana for recreational use, a new Field Poll conducted for The Sacramento Bee reveals that weed already is deeply woven into society.

Those who use the drug, and their reasons for doing it, may be as diverse as the state itself.

Forty-two percent of adults who described themselves as current users in the July poll said they smoke pot to relieve pain or treat a health condition. Thirty-nine percent use it recreationally, to socialize or have fun with friends.

Historically, marijuana use in California remains lower than during peak years of the late 1970s. But voters' approval of Proposition 215, the Compassionate Use Act – which made the state the first to legalize medical marijuana – is changing the social dynamic, according to poll results and interviews with users in 15 counties....

• More than 400,000 Californians use marijuana daily, according to the state Board of Equalization. And state residents consume 16 million ounces of weed a year, from legal and illegal sources.

• More than 3.4 million Californians smoked pot in 2008, according to the latest research by the National Survey on Drug Abuse and Health.

And, in the Field Poll, 47 percent of registered voters said they have used marijuana at least once in their life. That exceeds the registration of any political party in the state....

Nationally, more than 100 million Americans have tried marijuana, and 10 states – led by Rhode Island, Vermont and Alaska – have higher per capita use than the Golden State.

But in California, a proliferating industry of medical cannabis dispensaries, offering exotic strains such as "Blue Dream," "Train Wreck" or "Green Crack," helps supply a vast market, including many people who never venture inside a pot shop.

According to the state Board of Equalization, California marijuana dispensaries – intended to serve bona fide medical users, including AIDS, cancer and chronic pain sufferers – produce up to $1.3 billion in marijuana transactions for people reporting a vast range of ills.

"I'm sure there are people who suffer from any number of maladies that seek therapy from marijuana use," said Sacramento County Sheriff John McGinness. "But for at least as many, I think it's a ruse for healthy people who enjoy the effects of marijuana.....

[Ngaio] Bealum [editor of West Coast Cannabis] says readily available weed – and the reduced stigma and penalties – make people less wary of consequences. "As the boomers get older, those guys realized it is really no big deal," he said. "And the younger kids don't think it's a big deal, because their parents used to do it."

The July Field Poll shows plummeting support for tougher marijuana laws and increased backing for softer penalties. Yet marijuana arrests continue to rise. In 2008, California authorities cited 61,388 people on misdemeanor pot offenses and 17,126 for felonies such as illegal trafficking, cultivation or possession for sale. Total arrests were up by nearly one-third since 2003.

According to the Bee-commissioned poll, current marijuana use is most prevalent in the Bay Area and Northern California, including North Coast and Sierra Nevada counties with pot-receptive climates and cultures. Use is lower in the Central Valley and lowest in San Diego/Orange counties.

And, following previous trends, reported pot use is higher among whites than African Americans, Latinos and other ethnic groups.

Marijuana has found niches in the California lifestyle with young people starting their careers, affluent baby boomers and urban professionals.... Though current use is highest among people between 18 and 29 and earning less than $40,000 a year, pot also is finding a significant foothold among many reaching their prime career earning years....

According to the Field Poll, the overwhelming majority of current pot smokers prefer to use it at home or a friend's house. Smaller numbers say they enjoy it at parties, concerts or outdoors....

Many marijuana users have friends who bring home dispensary pot as easily as picking up the groceries.... Sociologist Reinarman said, "The line that separates recreational use from medical use is blurred" by the infusion of medical pot into California's popular culture. "There is no contradiction from people who sometimes use it for pain or sometimes use it for sleep or sometimes use it because it is fun and or stimulates their creativity," he said.

The notion offends Lanette Davies, who runs Sacramento's Canna Care dispensary, which serves 5,000 registered marijuana patients. Davies believes many illicit marijuana users may be self-medicating for undiagnosed medical conditions. But she said, "I don't support people using strictly for recreation. If you want to take Vicodin simply because it feels good, that doesn't make it OK."

The question in the title of this post spotlights what I consider to be the most important and also the most challenging question as "weed goes mainstream" in California and elsewhere. The proponents of legalizing and regulating the marijuana industry can point to potential income from tax revenues and potential savings from reduced criminal justice expenditures. Only time may tell if these claims of tangible benefits of legalization prove accurate, but proponents of legalization can also always fall back on the (intangible?) benefits of personal liberty and autonomy.

In contrast, opponents of legalizing and regulating the marijuana industry have an inherently harder (intangible) case to make unless marijuana use is viewed as inherently wrong as a truly wicked weed. Consequently, we see opponents claim that the potential tangible harms to kids and from pot-produced accidents on the roads and in the workplace justify keeping marijuana from being legalized and regulated like alcohol. But, given the evidence now of widespread availability and use of marijuana in California, I am wondering if these proponents have any data to support their claims that pot has such harmful potential.

I hope that some researcher might soon try to use the data indicating that pot use is greater in northern California and in certain counties to really try to assess and quantify if greater pot use can be directly linked to tangible societal harms. If such evidence can be found, I know I will be significantly more respectful of the concerns expressed by opponents of marijuana legalization.

The Trenton Times has this interesting new op-ed headlined "To curb corrections costs, reconsider sentencing, parole." The piece is authored by David Shebses, who worked for many years at the East Jersey State Prison "as supervisor for education and then as an executive assistant to the warden." Here are excerpts from his commentary:

[A] little historical perspective. When I started my career in 1970, New Jersey's population was just under 7.2 million, and roughly 5,500 people were incarcerated in the state's nine institutions....

[Thereafter] mandatory minimums were used on crimes such as murder, assault and robbery. As the 1980s unfolded, the Legislature decided to apply this sentencing concept to drug-related crimes, so that by 1990, the prison population exploded. It rose more than fivefold, from 5,500 inmates in 1970 to more than 30,000 inmates in 1990, while New Jersey's population had only risen by 6 percent, to 7.73 million....

[I] suggest the following:

1) Eliminate mandatory minimum sentences for all crimes....

2) Stop incarcerating most people who are convicted of using most drugs....

3) Abolish the parole system. Parole is based on a false premise, namely, that it is possible to predict human behavior. It is not possible....

4) Instead of parole, put money and staff into the county probation departments and have the state assume the responsibilities for both probation and re-entry programs....

5) Consider that how long an inmate serves should be a matter of statute and trial....

Incarceration is expensive and necessary for violent and repetitive offenders. But we have too many people incarcerated due to the mandatory minimum system and the zero-tolerance philosophy that underlies it. Many of these people just don't need to be in jail, and their incarceration costs the rest of us a fortune.

August 9, 2010

"Race Factor in Death Sentences"

The title of this post is the headline of this notable new commentary atThe Huffington Post by Carol Turowski, who serves as Co-Director of the Innocence and Justice Clinic at Wake Forest University School of Law. Here are snippets from the piece that, I suspect, will get some pro-death-penalty readers going:

The release last week of a study conducted by two law professors at Michigan State University College of Law has reignited the debate over the question of what role race plays in North Carolina when defendants are facing a death sentence. After examining 5,800 cases in North Carolina that were eligible for the death penalty from 1990 through 2009, the study concluded that a defendant in North Carolina is 2.6 times more likely to be sentenced to death if at least one of the victims is white. Moreover, the study found that more than 40 percent of defendants on North Carolina's death row were sentenced to death by a jury that was either all-white or included only one person of color. It was also determined by researchers that, during the jury selection process, prosecutors statewide struck qualified blacks from the potential jury pool at more than twice the rate of whites....

The study underscores the importance of the one-year old N.C. Racial Justice Act which allows inmates the chance to challenge their death sentences if they believe race was a factor in their sentencing. This ground-breaking legislation was adopted to counteract the racial disparities in death sentencing which have been observed by capital defenders and death penalty litigation organizations for decades.... A similar study conducted by a professor at the University of Colorado in Boulder last month concluded that someone accused of killing a white person in North Carolina was nearly three times as likely to get the death penalty as someone accused of killing a black person.

While the impact of these studies on the death row inmates' cases still remains to be seen, the conclusions reached by the researchers raises serious concerns about how we consciously or unconsciously view an individual's race in determining whether they should be given the most serious penalty our criminal justice system has to offer. If we have any doubts about whether race played a role in the practices of a prosecutor or in the determination of a jury, then it should be axiomatic that the sentence of death should be commuted to life. A racially conscious society must refuse to submit to the rhetoric of "punishment must fit the crime" and seek a higher moral ground that says a potentially racially-biased death sentence is intolerable in North Carolina.

The real issue going forward is whether North Carolina is willing to be a trailblazer in setting the example for other states who have equal concerns over whether the color of a person's skin could have contributed to their being considered for death or was a factor in their receiving a death sentence; it is our choice to make.

I have emphasized two particular sentences in this commentary because both the phrasing and claims seem noteworthy and worthy of debate.

Seeking "on-the-ground" reports on what is going on with crack sentencings

It has now been almost two weeks since the House of Representatives voted in favor of the Fair Sentencing Act of 2010, and almost a full week since the FSA became law. Though I have now seen lots of editorials from large and small papers praising the modification of crack mandatory sentencing provisions, I have yet to see a single story about how the new law is starting to impact actual crack sentencings.

There is a practical reason I am in a rush to figure all this out: there are, on average, over 100 crack sentencings in federal court every week. And I had been hearing that a whole lot of crack sentencings had been put on hold after the Senate passed the FSA way back in March. Further, the US Sentencing Commission now has less than three months to conform the crack guidelines to the intricate (and not always pro-defendant) provisions of the FSA. So I wonder is there a rush to get sentencings done now, or is there more delay, or does this vary district-to-district and courtroom-to-courtroom?

I hope folks might use the comments or send me e-mail with any and all notable post-FSA-enactment crack sentencing reports. Thanks!

Is Ohio (and the common law) not tough enough on negligent vehicular homicide?

The question in the title of this post is one inspired by this local story from the Columbus Dispatch, and one I am now planning to ask first-year students in my Criminal Law section later this month. The story is headlined "To widow, sentence highlights unfairness: Tough penalty urged in vehicular deaths," and here are the details:

Richard Crabtree was killed Feb. 1 in a car accident. He left behind a wife and three children. The police found the witnesses to her husband's death and brought charges against the young man who ran a red light and killed him.

The prosecutor secured a conviction on the most-serious charge. The judge's sentence was as tough as the law allows. Jenny Crabtree knows and appreciates all of that. But in the matter of the state of Ohio v. Steven J. Tirpak, she also will argue that justice -- for her, her husband, their three children -- was not served.

"Our lives are totally destroyed, forever; and he got 90 days in jail," the Westerville woman said.

Richard Crabtree left work early on Feb. 1 to meet his two older daughters, now 6 and 10, at the school-bus stop. Just before 4 p.m., Crabtree and a driver ahead of him were in the middle of the busy intersection of Polaris Parkway and Worthington Road, waiting to turn left to head north on Worthington. The light turned red.

"Mr. Crabtree had already entered the intersection," Detective Sgt. Steve Fridley of the Westerville police said. "You have the right to clear that, once everything's stopped. The other vehicle, for whatever reason, ran the red light."

The other vehicle was driven by Tirpak, then a 20-year-old Galena man with a history of speeding and criminal convictions for such offenses as theft and possession of drug paraphernalia.

Tirpak never accepted blame for the crash, Fridley said. He insisted the light was yellow when he broad-sided the 46-year-old Crabtree, killing him. "Fortunately for us, we had multiple witnesses" who verified the light was red, Fridley said.

Tirpak wasn't under the influence of drugs or alcohol, and he had a valid driver's license. A review of the evidence left police with two charges, vehicular homicide and vehicular manslaughter. Both are misdemeanors.

In June, Tirpak pleaded no contest to vehicular homicide, which is the more-serious charge and is punishable by up to 180 days in jail and a $1,000 fine. Judge David P. Sunderman found him guilty in Delaware Municipal Court.

Sunderman, who declined to be interviewed for this story, sentenced Tirpak last month to 180 days in jail with 90 days suspended, which allowed the court to have further control over him by placing him on five years of probation. He also was fined $1,000, sentenced to community service and lost his driver's license for five years.

"He got the max," said Peter Ruffing, city prosecutor for Delaware. "The judge threw the book at the kid," Jenny Crabtree acknowledged.

When the crash occurred, she prayed that the other driver would be remorseful and otherwise law-abiding. She could make peace with that. But Tirpak has a record of not abiding the law, and he did not apologize. He did not even look at her as she talked about her loss at sentencing. "What I got was the exact opposite," she said....

Because of her experience, Crabtree intends to lobby state lawmakers to strengthen vehicular-homicide punishments in Ohio. Ruffing would not speak about the Tirpak case in any detail. He said it is his job to uphold existing laws, not to criticize them or lobby that they be changed, as Crabtree hopes to do. "That's certainly an understandable position by a widow," he said....

Crabtree said the six months since her husband's death have been financially and emotionally crippling. She looked into a civil lawsuit, but Tirpak has no assets. She can expect only $12,500 from his insurance company.

There is a bit of an anachronism in the question in the title of this post because vehicular homicide crimes were largely unknown to the early common law (even though it was surely possible to kill a pedestrian while driving negligently a horse-and-buggy). But the common law did generally confront the issue of merely negligent killings and generally concluded [in the US] that such killings should not and could not lead to any homicide charges. [In most US jurisdictions before modern reforms, recklessness or extreme negligence was needed to make a matter criminal.[

Because Ohio has statutory provisions that make reckless killings a felony, I am assuming that prosecutors in this case concluded that they would only be able to prove that the deadly driver Steven Tirpak was driving negligently when he caused a fatal accident. [A reader rightly notes that Ohio still requires a form of gross negligence for criminal liability, though the standard is set forth in language not quite as strong as was at common law.] That suggests that the victim's family should be at least by thankful that Ohio has not merely codified common-law homicide rules. If it had, it is possible Mr. Tirpak might not have been subject to any criminal prosecution at all.

UPDATE: In response to helpful comments, I have tweaked the commentary in this post to be more accurate. Most of the tweaking appears in brackets above.

August 8, 2010

"Unyielding law means sex offender can't stay, can't move"

The title of this post is the headline of this new piece in the Miami Herald, which gets started this way:

Joseph Mortimer and his wife took out an equity loan on their longtime home in Richmond Heights during the real-estate boom, fell into foreclosure in February and then got scammed for $3,000 at a loan-modification seminar. But their recession story has a twist: Mortimer can't move to another nearby home because he was convicted of a sex offense in 1993.

Mortimer's problem illustrates a quirk in the Miami-Dade County ordinance that bars sex offenders from living within 2,500 feet of a school, park or playground. Because Mortimer lived in his Southwest Miami-Dade house before the ordinance was passed in 2005, he was allowed to stay there despite its proximity to two schools. But the location of his newly purchased house -- about one block away -- violates county law.

"I don't know what to do," said Mortimer. "Every time a new law comes out, it's like I'm being convicted all over again."

Mortimer, 44, pleaded guilty in 1993 to attempted sexual battery on a minor for molesting his girlfriend's 15-year-old daughter. He later married the girl's mother, underwent therapy and completed his probation in 2002.

He received a withhold of adjudication, meaning no felony conviction appears on his record, and holds a job as a heavy-equipment operator with Miami-Dade County. In court recently, Mortimer begged Miami-Dade Circuit Judge Jorge Cueto for help.

The judge said there was nothing he could do. "The man is doing really well. He's been a productive citizen for years," Cueto said in court. "But I don't have the power to change the law."

"Judge to fraudster: Play poker or go to prison"

The title of this post is the evocative (and a bit inaccurate) headline for this report of a novel term of a state sentence of a white-collar criminal who is also a professional poker player. Here are the details:

As criminal punishments go, this one's a royal flush. A convicted scam artist in Albuquerque has been given a novel order by the judge sentencing him: Go play poker.

Samuel McMaster, Jr., a former insurance agent and poker player, pleaded guilty to 26 felony charges, including securities fraud, in a New Mexico courtroom last week, reported KOB TV. He was accused of bilking investors of their money, and using at least some of the proceeds to fund his poker playing.

"The financial records showed a lot of withdrawals from ATM machines at different casinos and we have lots of evidence to show he likes to play poker,” prosecutor Phyllis H. Bowman said.

McMaster faces up to 12 years in prison, but the judge agreed to the defense lawyer's request for a unique punishment. The judge suspended the sentence for six months, to give McMaster a chance to pay back some of the $440,000 he took from investors.

If McMaster can consistently pay $7,500 per month to his victims for the next six months, he will face a reduced prison sentence. And to make it possible for him to earn that kind of cash, the judge has allowed him to travel out of state to play in poker tournaments.

The top headline on this front page of this Sunday's Columbus Disptach asks "Timeout From Death?" and follows with this subheading "Questions in the case of a man heading toward execution prompt calls for a review of Death Row cases - and a possible moratorium." Here is the start of a lengthy article:

The former high-school football star sits with shackles around his thick legs and says things you would expect from a man on Death Row.

He is innocent. Someone else shot and killed those three people. He has a good alibi. Local police poisoned witnesses against him. The photo lineup of suspects was rigged. There was a phantom witness. "I can't see me being put to death," said Kevin Keith, 46, who is scheduled for execution Sept. 15 and the requisite clemency hearing this week. "It would be a sad day for me, my family and the justice system."

Although they all might not believe everything Keith says, or that he's innocent, a growing number of people have doubts about his case— including the man who could save him. "It has circumstances that I find troubling," said Gov. Ted Strickland, who has the power to grant Keith clemency. "We are looking at that case very seriously."

Cases such as Keith's, coupled with Ohio's pace for a record number of executions this year, have prompted current and former high-level officials to call for a comprehensive review of all Death Row cases— and possibly a moratorium on executions. The officials include two former prison directors and three prominent Republicans: Ohio Supreme Court Justice Paul E. Pfeifer, former Attorney General Jim Petro and state Sen. David Goodman of New Albany.

Adding to the momentum are five death-sentence commutations by two governors since 2003, passage of a strong DNA law to avoid wrongful convictions, and exonerations of three inmates because of new DNA test results.

Pfeifer, who first urged a Death Row review in a Dispatch story in May, remains the strongest advocate for a review. His six colleagues on the court, plus Strickland and Attorney General Richard Cordray, have no interest in a study commission, much less a moratorium. "This isn't about me or anything I might do," Pfeifer said, "although I might have to revisit that if the new governor says, 'I don't want any part of it.'"

Pfeifer was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional. Pfeifer said he is not suggesting that any of the 160 men and one woman on Death Row are innocent or should be set free, only "whether or not death is the appropriate penalty."

Petro supports the death penalty but favors forming an independent task force to examine Death Row cases and halting executions while that review is being conducted. "We should show restraint, caution and diligence with these cases," Petro said. "DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."

Two former state prison directors, Reginald A. Wilkinson and Terry Collins, who witnessed 34 of 39 executions since 1999, agree that the Death Row cases should be reviewed to see if they are the "worst of the worst," the standard set down when Ohio resumed capital punishment 11 years ago.

Wilkinson, director from 1991 to 2006, takes it a step further. "I'm of the opinion that we should eliminate capital punishment," he said. "Having been involved with justice agencies around the world, it's been somewhat embarrassing, quite frankly, that nations just as so-called civilized as ours think we're barbaric because we still have capital punishment."

But Strickland doesn't support an additional sweeping review. "I would caution against setting up sort of an extra-judicial process to replace what is a very understood and rigorous approach to these matters," he told The Dispatch. "I've got an obligation to carry out the law," the Democratic governor said. "I try to do that extremely carefully. Any death-penalty cases we've dealt with since I've become governor have been given much scrutiny and analysis."

The strongest voices against a fresh look at the death penalty are Attorney General Richard Cordray; former congressman and current Republican candidate for governor John Kasich; former U.S. Sen. Mike DeWine, the GOP candidate for attorney general; Franklin County Prosecutor Ron O'Brien; and John Murphy, head of the Ohio Association of Prosecuting Attorneys.

"I'm confident so far, we haven't had any miscarriages of justice on my watch," Cordray said. "I haven't seen the justification for a moratorium here in Ohio."

Interesting series at The Guardian concerning the war on drugs

The UK paper The Guardian has lately had a lot of interesting coverage of international drug policy issued and debates, much of which can be found at this topical page. And these three newest piece provide especially worthwhile weekend reading: